F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 6 2002

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 01-2062
(D.C. No. CR-00-543-LH)
(D. N.M.)

v.
JAVIER ENRIQUE
BARRIENTOS-SOLIS,
Defendant-Appellant.

ORDER AND JUDGMENT

Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and

Senior Circuit Judge.

BRORBY ,

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Defendant Javier Barrientos-Solis appeals his ninety-two month sentence,

imposed after a jury convicted him of violating 8 U.S.C. 1326(a), (b)(2) (illegal
reentry into the United States after arrest and deportation, and after having been
convicted of an aggravated felony without reapplying for admission and without
the consent of the Attorney General).
On appeal, Mr. Barrientos-Solis argues that he was entitled to a three-level
reduction from his base offense level for acceptance of responsibility, pursuant to
3E1.1 of the United States Sentencing Guidelines. Under 3E1.1(a), [i]f the
defendant clearly demonstrates acceptance of responsibility for his offense, the
district court shall decrease the offense level by 2 levels. Additionally, if the
defendant qualifies for a reduction under subsection (a), and the offense level
before that reduction is level sixteen or greater, and the defendant . . . timely
provid[es] complete information to the government concerning his own
involvement in the offense, the court shall decrease [the offense level] by 1
additional level. USSG 3E1.1(b).
Acceptance of responsibility involves truthfully admitting the conduct
comprising the offense(s) of conviction.

Id., cmt. n.1(a). Conviction by trial

does not automatically preclude a defendant from consideration for such a

reduction. Id. , cmt. n.2. In rare situations a defendant may clearly demonstrate
an acceptance of responsibility for his criminal conduct even though he exercises
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his constitutional right to a trial: for example, he may go to trial to assert and
preserve issues that do not relate to factual guilt.

Id. ; see also United States v.

Garcia , 182 F.3d 1165, 1172 (10th Cir. 1999).

Here, Mr. Barrientos-Solis claims he was entitled to the full three-point
reduction because he had accepted responsibility in a pre-trial statement. Because
defendant did not seek the 3E1.1 reduction and did not object to the district
courts failure to grant it sua sponte, our review is for plain error.

United States

v. Jones , 80 F.3d 436, 438 (10th Cir. 1996). Under the plain error rule,
a defendant must show clear or obvious error affecting his substantial rights, and
seriously affecting the integrity of the judicial proceedings.

Id.

According to the Presentence Report (PSR), Mr. Barrientos-Solis submitted

a statement to the probation office in which he admitted that he was not from the
United States and that he was in the country illegally. The probation officer
authoring the PSR considered this account a complete statement accepting
responsibility.

See R. Vol. II, at 4. On the other hand, Mr. Barrientos-Solis put

the government to its burden of proof by denying the essential factual elements of
his guilt and proceeding to trial. Pleading not guilty and requiring the
government to prove guilt at trial demonstrate denial of responsibility, regardless
of how easily the government can prove guilt.

United States v. Portillo-

Valenzuela , 20 F.3d 393, 394-95 (10th Cir. 1994).

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At the very least, Mr. Barrientos-Solis inconsistent pre-trial and trial

conduct required factual findings on the issue of whether he clearly accepted
responsibility for his offense.

See United States v. Gauvin , 173 F.3d 798, 805

(10th Cir. 1999) (stating that the determination of acceptance of responsibility is

a question of fact). Defendants failure to raise the issue earlier, however,
deprived the district court of the opportunity to make the essential factual
findings. Under these circumstances, we conclude that the district court did not
commit plain error in sentencing Mr. Barrientos-Solis.
The judgment of the district court is AFFIRMED.
Entered for the Court

Wade Brorby
Senior Circuit Judge

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